Citation Nr: 0526865
Decision Date: 09/30/05 Archive Date: 10/17/05
DOCKET NO. 99-14 929 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for sarcoidosis.
2. Entitlement to service connection for asthma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran served on active duty from March 1965 to October
1968 and from January 1991 to April 1991. He also served on
a period of active duty for training from February 19, 1984,
to March 3, 1984. This matter comes to the Board of
Veterans' Appeals (Board) on appeal from a January 1999
rating decision of the Department of Veterans Affairs (VA)
regional office (RO) in Columbia, South Carolina, that denied
the veteran's claim for service connection for pulmonary
disease. The veteran appealed. In November 2000 and August
2003, the Board remanded the claim for additional
development. The Board has determined that the issues are
more accurately characterized as stated on the cover page of
this decision. The issue of service connection for asthma is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The veteran's sarcoidosis is related to his service.
CONCLUSION OF LAW
Service connection is warranted for sarcoidosis. 38 U.S.C.A.
§§ 101(21) and (24), 1110, 1131, 5107 (West 2002); 38 C.F.R.
§§ 3.6, 3.102, 3.159 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Service Connection
The veteran asserts that service connection is warranted for
a pulmonary disability. Specifically, he argues that he
developed a pulmonary disability during his period of active
duty for training (ACDTRA) in 1984.
In order to establish service connection for a disability,
the evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
The law provides that only "veterans" are entitled to VA
compensation under 38 C.F.R. §§ 1110 and 1131 (West 2002).
The term "veteran" is defined, in relevant part, as "a person
who served in the active military, naval, or air service and
who was discharged or released under conditions other than
dishonorable." 38 U.S.C.A. § 101(2) (West 2002); see also 38
C.F.R. § 3.1(d) (2004). The term "active military, naval, or
air service" includes: (1) active duty; (2) any period of
ACDUTRA during which the individual concerned was disabled or
died from a disease or injury incurred or aggravated in the
line of duty; and (3) any period of INACDUTRA during which
the individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. See 38 U.S.C.A.
§ 101(21)-(24); 38 C.F.R. § 3.6(a)-(d). Both the presumption
of soundness and the presumption of service connection for a
disorder manifested within a specified presumptive period
after service, however, apply only to periods of active duty.
Paulson v. Brown, 7 Vet. App. 466 (1995).
The claimant in this case is a "veteran" based on his active
duty service from 1965 to 1968, and in 1991. Therefore, he
is entitled to "veteran" status and the full benefit of VA
resources for any compensation claim based on those periods
of service. However, his claim is not based on those period
of service, rather, it is based on ACDUTRA in 1984. In order
for the appellant to achieve "veteran" status and be eligible
for service connection for disability claimed during his
ACDUTRA, the record must establish that he was disabled
during ACDUTRA due to a disease or injury incurred or
aggravated in the line of duty. See Mercado- Martinez v.
West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet.
App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474,
478 (1991).
"Sarcoidosis is a chronic, progressive, systemic
granulomatous reticulosis of
unknown etiology, involving almost any organ or tissue,
including the skin, lungs,
lymph nodes, liver, spleen, eyes, and small bones of the
hands and feet." Carbino
v. Gober, 10 Vet. App. 507, 508 (1997).
The medical evidence for consideration in this case includes
the veteran's service medical records, which do not show
treatment for respiratory symptoms during the veteran's first
period of active duty. Service medical records dated after
the veteran's first period of active duty include a June 1983
"report of medical history" which does not show any
relevant complaints, and an August 1983 pulmonary function
test (PFT) that does not contain a diagnosis. In addition,
an August 1983 examination report indicates that the
veteran's lungs and chest were clinically evaluated as
normal, and that a chest X-ray was within normal limits.
The veteran began the relevant period of active duty for
training on February 19, 1984. A report, dated February 23,
1984 shows that he sought treatment for a respiratory
problem. At that time, he reported a four week-old cough,
and that his friends had told him that he was breathing
peculiarly. An X-ray was negative, but the report notes
"probable mild nonreversible chronic pulmonary disease."
Service medical records dated in 1988 and thereafter contain
notations of sarcoidosis and asthma, and indicate that the
veteran was determined to be medically disqualified from
worldwide duty.
Other medical evidence includes reports from Edward E. Mays,
M.D., dated between 1984 and 1986. This evidence shows that
on March 18, 1984, the veteran sought treatment, and that the
diagnoses were bronchitis and sarcoidosis. He received
ongoing treatment for sarcoidosis from that time onward.
Reports from Stanton Siu, M.D., dated between 1987 and 1997,
and the Eau Claire Cooperative Internal Medicine (ECCIM),
dated between 1987 and 2004, show the following: the veteran
underwent treatment for sarcoidosis and asthma beginning in
1987; in September 1987 the veteran was treated for
respiratory symptoms, with diagnoses of a left upper lobe
collapse, pulmonary embolism, and pulmonary sarcoidosis; he
was periodically treated for respiratory symptoms beginning
in 1992, with multiple notations of asthma.
A VA respiratory examination report, dated in March 2002,
shows that the diagnoses were asthma, and inactive
sarcoidosis. The examiner stated that it was at least as
likely as not that the veteran's "pulmonary condition" had
its onset during his ACDUTRA, and that it did not pre-exist
that period.
A VA respiratory examination report, dated in December 2004,
shows that the diagnoses were bronchial asthma, and inactive
pulmonary sarcoidosis. The examiner stated that it was less
likely than not that the veteran's pulmonary sarcoidosis had
its onset during the veteran's period of ACDUTRA, and that it
was more likely pre-existing. The examiner stated that it
was less likely than not that the veteran's asthma had its
onset during ACDUTRA and that it more likely pre-existed
service and then exacerbated. Finally, the examiner stated
that it was less likely than not that the veteran's
sarcoidosis and asthma were worsened during his ACDUTRA
beyond the natural progression of the diseases. The examiner
explained that the natural course of sarcoidosis is such that
by the time it was diagnosed by chest X-ray, it more likely
than not had existed for some time, and pre-existed ACDUTRA.
With regard to asthma, the examiner stated that the veteran's
asthma history dated to age five, and that the medical
records really do not contain any indication that he had
recurrent asthma until 1987.
The Board finds that service connection for sarcoidosis is
warranted. First, there is nothing in the service medical
records to show that sarcoidosis existed prior to February
1984. In this regard, although there are indications of
respiratory symptomatology prior to the February 23, 1984
treatment, there are no findings of sarcoidosis prior to
beginning ACDUTRA. In addition, the claims file contains the
conflicting opinions of two VA examiners, one of whom
concluded that the veteran's sarcoidosis started during
ACDUTRA, and did not pre-exist ACDUTRA. Given the foregoing,
the Board finds that the evidence is at least in equipoise.
Service connection is therefore granted for sarcoidosis.
II. VCAA
There has recently been a significant change in the law with
the enactment of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding
that VA cannot assist in the development of a claim that is
not well grounded). The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
was implemented with the adoption of new regulations. See
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326a.
In this case, in a letters, dated in January 2002, January
2004, November 2004, and January 2005, the veteran was
notified of the VCAA, and of his duties to obtain evidence.
Furthermore, as the Board has granted the veteran's claim for
service connection for sarcoidosis, the Board finds that a
detailed discussion of the VCAA is unnecessary. Any
potential failure of VA in fulfilling its duties to notify
and assist the veteran is essentially harmless error. See
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
ORDER
Service connection for sarcoidosis is granted.
REMAND
In this decision, the Board has granted the veteran's claim
for a pulmonary disability to the extent that it has granted
service connection for sarcoidosis. However, the most recent
VA respiratory examination report contains a diagnosis of
"inactive pulmonary sarcoidosis," and the veteran is also
shown to have asthma.
The Board must review all issues reasonably raised from a
liberal reading of these documents. Suttmann v. Brown, 5
Vet. App. 127, 132 (1993) (citations omitted). In this case,
a service examination report, dated in October 1990, contains
a notation that the veteran was treated for a left lung
collapse in October 1987 that was due to illness, and that as
a result the veteran has recurring asthma. See also reports
from Dr. Siu, dated in September 1987 (showing treatment for
a pulmonary embolism and a collapsed lung). The Board is
therefore satisfied that the evidence raises the issue of
entitlement to service connection for asthma as secondary to
service-connected sarcoidosis. See 38 C.F.R. § 3.310 (2004).
However, this claim has not yet been adjudicated by the
agency of original jurisdiction. In order to correct the
material due process defect, the case must be remanded for
consideration of the issue of service connection for asthma
under the provisions of 38 C.F.R. § 3.310. See Bernard v.
Brown, 4 Vet. App. 384 (1993).
Finally, to the extent that a claim has been presented for
asthma "on a direct basis," see 38 C.F.R. § 3.303, this
issue is considered inextricably intertwined with the
"secondary" claim for asthma, and the claims must therefore
be decided together. See Harris v. Derwinski, 1 Vet. App.
180, 183 (1991); Parker v. Brown, 7 Vet. App. 116, 118
(1994). Further adjudication of the asthma claim on a direct
basis will therefore be postponed until the RO has addressed
the "secondary" claim.
Accordingly, the Board has no alternative but to defer
further appellate consideration and this case is REMANDED to
the RO via the Appeals Management Center in Washington DC for
the following action:
The RO should adjudicate the issue of
entitlement to service connection for
asthma, to include as secondary to
service-connected disability under
38 C.F.R. § 3.310. If the determination
remains unfavorable to the appellant, he
should be provided with a supplemental
statement of the case (SSOC) that
addresses all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations considered. The
appellant should be given an opportunity
to respond to the SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs